EEOC Proposes Rule to Add Recordkeeping Requirements Under the Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission has issued a proposed rule that would amend the existing recordkeeping regulations applicable to Title VII, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act to add references to the Pregnancy Workers Fairness Act.

As the EEOC notes, “the PWFA requires covered employers to provide reasonable accommodations to a qualified applicant’s or employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.” The EEOC further notes that “the PWFA adopts by reference the statutory recordkeeping provision of Title VII, which authorizes the existing EEOC recordkeeping regulations.” These regulations require private employers and labor organizations to preserve records that were “made or kept” for one year, and public sector employers and apprenticeship programs for two years. If a charge of discrimination is filed, the employer must preserve any relevant records until final disposition. However, those regulations do not specifically reference the PWFA, which was enacted in 2022 and which took effect on June 27, 2023.

Although the EEOC previously issued an interim final rule that revised its administrative and procedural regulations to include references to the PWFA, it did not do so with regard to the recordkeeping provisions for certain technical reasons, including a need for public hearing. At this point, the EEOC is now proposing such revisions. Interested members of the public will have 60 days following publication of the proposed rule in the Federal Register from November 21, 2024 (i.e. until January 21, 2025) to comment on the proposed rule (comments may be submitted on the Federal Register webpage). The EEOC must consider such comments, as well as hold the requisite hearing, prior to issuing a final rule.